Media company eyeing 180-day carriage extension
By Ahmad Hathout
Bell is defending itself against a claim made by WildBrain that it improperly terminated its agreement to carry the media company’s services.
The claim in the Ontario Superior Court primarily centers on a notice Bell was contractually obligated to provide WildBrain that laid out that it did not want to auto renew their agreement to carry the Family Channel, Family Jr., WildBrainTV, and Télémagino services at the end of December 2022. That contract stipulated that the terms would otherwise auto renew after that first term of the four-year agreement.
In a statement of claim dated April 15, WildBrain claims Bell sent in June 2022 the 180-day notice only by email and not by one of the other methods as laid out in the May 8, 2020 agreement.
“WildBrain did not designate a new or additional address or electronic communication number for notice under section 13.4,” which stipulates notices “shall be given by personal delivery, fax, registered mail or electornic means of communication to the following adressees,” the company said in its claim statement. WildBrain claims it provided a mailing address and a fax number, but no email addresses.
“The Affiliation Agreement remains in full effect. The Bell Defendants are required to continue to perform that contract, which provides for their irreplaceable and unique distribution of the WildBrain Services to a massive proportion of the Canadian television viewing public,” WildBrain says in its claim statement.
The complaint is dated the day after the children’s programmer said it had to renegotiate aspects of a December 2024 deal to sell to IoM Media Ventures a portion of its TV business, including the four channels in question. The setback came a month after the CRTC rejected its argument that Bell was unduly disadvantaging its children’s services by allegedly giving a leg up to its major competitor – Corus.
As a result of the CRTC decision, Bell said it notified WildBrain in April that it was going to stop carrying the channels on May 20.
WildBrain also argues that an emailed communication from Bell on December 14, 2022 – which laid out that it would continue carrying the channels pending negotiations on new contractual terms – effectively “withdrew such notice, waived the Bell Defendants’ rights to rely on it and created an estoppel against the Bell Defendants reliance on such notice of termination.”
WildBrain is asking the court to stop Bell from terminating the channels until 180 days after it provides proper notice, as well as damages associated with what it calls a breach of contract.
Bell, however, disputes the claims.
In a statement of defence, filed earlier this month, the broadcaster claims the contract explicitly stipulates the option to deliver the notice electronically. The wrinkle is that — while the agreement prescribes no addresses by which it had to provide notice — it does provide the names of the addressees, it claims.
So Bell said it sent an email to Brian Cuff, WildBrain’s then-vice president of TV, distribution and strategic partnerships, who allegedly acknowledged receipt and “did not in any way challenge the validity of the Notice,” Bell alleges.
“To the contrary, the plaintiff clearly understood and subsequently acknowledged to the defendants and to the [CRTC],” Bell claims.
When WildBrain received the notice in December 2022, it told the CRTC that the parties were in the middle of negotiating a new deal, which it said triggered a regulatory standstill. Bell said it didn’t believe the notice constituted a standstill because it didn’t interpret the way things were moving as a “dispute.”
The negotiations never went anywhere anyway, and on March 9, 2023, Bell told WildBrain that it would fully cease distribution of the channels — starting with new package subscribers — effective 90 days later, according to the court documents.
WildBrain then went to the CRTC again and asked it to conduct a mediation between the parties and reaffirm that there was a standstill in place, which Bell acknowledged only after the two entered dispute territory.
The CRTC, in the meantime, embarked on its investigation into the undue preference allegations. “Due to the plaintiff’s tactical and unfounded allegations before the CRTC, the plaintiff secured for itself a windfall, comprised of an additional 29 months of distribution fees from the defendants, after the effective termination of the Agreement,” Bell said in its statement.
Bell is ultimately arguing that the WildBrain complaint is meritless because the CRTC determination only emerged because the agreement had been terminated, which it says has to mean the notice was properly delivered.
The viability of children’s programming on traditional television is currently in the spotlight. As the CRTC contemplates what to do about it, Corus recently told us that it was shutting down five such channels on September 1.
Corus will square off against Rogers later that month about the applicability of a CRTC standstill that is forcing the cable giant to freeze movement on some of Corus’s other services.
